RE GEOFFREY DUDLEY LAWRENCE; EX PARTE WESTPORK PTY LTD [2012] WASC 487 (11 December 2012)

3 Those applications were heard before his Honour Magistrate G D Lawrence who, on 20 March 2012, dismissed the applications, holding that, in the circumstances, the proceedings had been validly commenced and should proceed. From those decisions of his Honour the applicants have applied to this court for orders to review the decision of the learned magistrate dismissing the stay applications. On 6 July 2012 McKechnie J made orders to review those decisions and give direction for the hearings of the orders to review.

4 In CIV 1652 of 2012 the applicant, Westpork Pty Ltd, applied by originating motion filed 19 April 2012 for orders that:

1. Magistrate Geoffrey Dudley Lawrence (Court Officer) and the Department of Local Government (Prosecutor) satisfy the Supreme Court at a hearing:

(a) that the decision of the court officer made on 20 March 2012, being a decision to dismiss the Applicant's application to have certain proceedings against the Applicant in the Magistrates Court of Western Australia (Magistrates Court) for alleged offences under s 19 of the Animal Welfare Act 2002 the subject of a prosecution notice dated 25 January 2011 and being recorded by the Magistrates Court as charges PE 24679/11 to 24684/11 (Proceedings) stayed on the basis that the Magistrates Court is without jurisdiction to hear the Proceedings, should not be set aside; and

(b) that the Proceedings should continue.

1. The cost of and incidental to this application be paid by the prosecutor.

AND take further notice that the grounds of this application are:

1. Section 34(2) of the Criminal Procedure Act 2004 requires that a prosecution notice must be lodged in a manner prescribed by the rules of court.
2. Rule 45 of the Magistrates Court (General) Rules 2005 provides that a prosecution notice must be lodged by handing the original notice to the court.

1. Accordingly, the court has no jurisdiction to proceed on the charges on a prosecution notice in the absence of an original prosecution notice.

1. The Magistrates Court does not have the original prosecution notice relating to the Proceedings.
2. The Prosecution has failed to satisfy the Court Officer, on a balance of probabilities, that the Prosecution lodged the original prosecution notice relating to the Proceedings with the Magistrates Court.
3. Accordingly, the Magistrates Court is without jurisdiction to hear the Proceedings and the Proceedings should be stayed.

5 The order to review made by McKechnie J on 6 July directed that the order to review should be heard by a Judge in chambers and that a copy of the order to review should be served upon the Principal Registrar of the Magistrates Court and upon the prosecutor. That order also directed that it should operate as a stay of proceedings until this court orders otherwise.

6 Although not formally named, the prosecutor for each of the proceedings was served and appeared by counsel at this hearing and has been referred to in each case as the respondent. There would appear to be a need for each respondent to be joined formally as a party to each set of proceedings but, unless there is some substantial reason to refrain from doing so, an order to that effect can be made when these matters are called on for decision or later if necessary. To continue with the procedure adopted by the parties without objection, I shall proceed on the footing that the nominal prosecutor for each prosecution is a party to these present proceedings as respondent in each of them.

7 In CIV 1653 of 2012 a similar procedure was followed. However, it is desirable to set out precisely the terms of the relief sought and the order to review made. In this case, again on 19 April 2012, this applicant, Neil Ferguson, applied by originating motion for a review order under s 36 of the Magistrates Court Act 2004 seeking orders that:

1. Magistrate Geoffrey Dudley Lawrence SM and the Department of Local Government ('prosecutor') satisfy the Supreme Court at a hearing that the decision of Magistrate Geoffrey Dudley Lawrence SM made on 20 March 2012 in the Magistrates Court of Western Australia for alleged offences under s 19 of the Animal Welfare Act 2002 the subject of a prosecution notice dated 25 January 2011 and being recorded by the Magistrates Court as charges PE 24685 90/11 ('Proceedings') [be] stayed on the basis that the Perth Magistrates Court is without jurisdiction to hear the proceedings should not be set aside.
2. That the Proceedings should continue.
3. That the costs of and incidental to this application be paid by the Prosecutor.

AND take further notice that the grounds of this application are:

1. Section 24(2) of the Criminal Procedure Act 2004 requires that a prosecution notice must be lodged in the manner prescribed by the rules of court.
2. Rule 45 of the Magistrates Court (General) Rules 2005 provides that a prosecution notice must be lodged by handing the original notice to the court.

1. Accordingly, the court has no jurisdiction to proceed on the charges of a prosecution notice in the absence of an original prosecution notice.

1. The Magistrates Court does not have the original prosecution notice relating to the Proceedings.
2. The Prosecution has failed to satisfy the Court Officer, on a balance of probabilities, that the Prosecution lodged the original prosecution notice relating to the Proceedings with the Magistrates Court.
3. Accordingly, the Magistrates Court is without jurisdiction to hear the Proceedings and the Proceedings should be stayed.

8 Once again McKechnie J granted an order to review the decision in CIV 1653 of 2012 on 6 July 2012, directed service of a copy of that order upon the Principal Registrar of the Magistrates Court and upon the prosecutor, directed that the proceedings in the Magistrates Court should be stayed until further order of this court and made other incidental procedural directions.

9 Again in this second case the hearing has proceeded on the basis that the prosecutor was party (as respondent) to the application and appeared and was heard by counsel. Subject only to the formal requirement of directing that the prosecutor should be named and joined as a respondent at the first convenient opportunity, I shall proceed on the footing that the prosecutor has been so joined in this current application.

10 In CIV 1652 of 2012 there was one single prosecution notice dated 25 January 2011 containing six charges commenced by the Department of Local Government (prosecutor) against Westpork Pty Ltd (applicant). Between then and 28 April 2011 it emerged that the original prosecution notice 'could not be located by the court and that the charges would be listed based on copies of the prosecution notices'. The solicitors acting for Westpork Pty Ltd objected to this course, contending that the Magistrates Court had no jurisdiction to hear the relevant charges in the absence of an original prosecution notice. Affidavits were then filed in the Magistrates Court setting out the circumstances leading to the preparation of the charges and the alleged filing of the prosecution notice and the subsequent inability for it to be found by the court. The issue of whether or not the prosecutions could proceed was then listed for hearing before his Honour, Magistrate G D Lawrence on 25 November 2011 when counsel appeared and made submissions. His Honour reserved his decision, which was later delivered on 20 March 2012 and which, as already stated, dismissed the application for a permanent stay of the proceedings.

11 There is no separate affidavit describing the procedure followed in relation to the charges against Neil Ferguson, the applicant on CIV 1653 of 2012. However, the transcript of the proceedings before the learned magistrate on 25 November 2011 makes it quite clear that both Westpork Pty Ltd and Mr Ferguson were applicants to the court seeking an order staying the proceedings or other similar relief. Each was represented by separate counsel, who was heard, and his Honour dealt with both sets of matters together as well as an application by a third accused, which need not now be mentioned.

12 Of the six charges which are the subject of CIV 1652 of 2012, each alleges that on dates between 26 January 2009 and 2 February 2009 the defendant (the applicant Westpork Pty Ltd) was guilty of an offence against s 19(1) and s 19(3)(h) of the Animal Welfare Act 2002 by being cruel to an animal which could have been alleviated by the taking of reasonable steps. The particular prosecution notice was signed by an authorised officer from the Department of Local Government and by a justice of the peace on 25 January 2009.

13 There are also six charges which are the subject of CIV 1653 of 2012 against Mr Neil Ferguson. These allege offences by him against the same provisions of the Animal Welfare Act and upon the same dates.

14 There is a limitation period prescribed by s 82(2) of the Animal Welfare Act for proceedings for an offence under that Act. That provides that proceedings for an offence under that Act may not be commenced more than two years after the offence was allegedly committed. These prosecution notices were, therefore, signed on the last available day before the twoyear limitation period expired. For that reason, fresh prosecution notices to replace those which have since been lost or gone missing cannot effectively be issued.

15 As already noted, there was affidavit evidence filed in the proceedings in the Magistrates Court by which the respondents sought to establish that original prosecution notices had been filed in the court and, therefore, if they had been lost or destroyed this had occurred after the prosecutions had been validly commenced. However, for reasons which need not now be canvassed, the learned magistrate was not satisfied that the prosecution had proved that this was the case. His Honour's finding in this respect was:

I accept the parties' contention that the prosecution bears the burden of proving that the prosecution notices were actually lodged with the Registry. I agree that the standard of proof is the balance of probabilities. Ultimately, for reasons that follow, it is my finding that it is equally likely that the now missing original notices were not received and lodged at the Registry as it is that they were.

16 Hence, his Honour proceeded on the basis that it had not been established to the requisite degree of proof that the original prosecution notices had been lodged with the court. The respondent accepts this finding and conducted its defence of the present applications on the basis that originals had not been filed.

17 The crucial part of the learned magistrate's written reasons for decision on this aspect of the case appear at pages 6 and 7 (see pages 152 and 153 of the affidavit of H C Faas, sworn 12 April 2012 in CIV 1652 of 2012). There his Honour said:

All charges against all accused in this matter were commenced in time; the provisions of the CPA were complied with; an authorised officer and a JP signed them on dates prior to the limitation period expiring. Lodgement did not determine whether the prosecutions were commenced within time, the signing and in particular the date of that signing, did.

The originals are lost; that they previously existed is I find certain. The copies bear this out. On their face and without doubt they constituted the commencement of proceedings. A copy was retained on the State Solicitor's Office file and was eventually provided to the Registry lodged in place of the missing original. It is a copy of a prosecution notice duly commenced in time. It is the best evidence available in the circumstances. The circumstances were that in the course of the daily work of a large litigation office such as the State Solicitor's Office or in the daily work of a court Registry especially one as large as the Perth Registry, through innocent administrative oversight (and certainly it is difficult to imagine and neither party suggests that there has been any mal[a] fides in the disappearance of the original prosecution notice) a document might be overlooked, lost or not delivered.

Whilst it is important to guard against such occurrences it is surely part of the human condition that an item might be misplaced, misfiled or the like only to come to light later.

Mr Quinlan SC on behalf of Westpork Pty Ltd has asked me to consider the use of the phrase 'prosecution notice' in the CPA. He points to the mandatory nature of recording the court result on the prosecution notice. He I find rightly concedes that this is not the strongest of arguments. The CPA does not provide that a failure to do so will in any way vitiate a finding of guilt or innocence. It is a provision to ensure a record is kept on a prosecution notice. In circumstances like those that have arisen here that, from time to time but hopefully rarely, there will be a copy of an original notice that properly commenced proceedings which can be endorsed.

I do not accept that as a matter of statutory interpretation the provisions of the CPA can be so narrowly interpreted that in circumstances as they have arisen in this case a copy of that prosecution notice signed on that date, within a limitation period, cannot properly ground the proceedings that were commenced on that date within the limitation period and in accordance with the CPA.

This application is dismissed. The proceedings on all charges including those that have been in issue on this application will remain.

18 It is as a result of that ruling that the applications to stay the proceedings in the Magistrates Court were dismissed and that, from those dismissals, the present orders for review have been obtained.

19 The essential submissions for the applicants are that the jurisdiction of the Magistrates Court is only enlivened by the proper initiation of a prosecution in accordance with s 11(3) of the Magistrates Court Act 2004 and s 24(2) of the Criminal Procedure Act 2004. Further reliance for the submission that the prosecution requires initiation by an original prosecution is said to come from s 24(1) 'the court in which the prosecution is being commenced' and from the definition of 'prosecution notice' in s 3 which, among other things, is defined by reference to it being 'lodged with a court of summary jurisdiction'. It is further submitted that the use of the word 'must' within s 24(2) renders it mandatory that the prosecution notice be lodged in the court for the initiation of any prosecution. It was further submitted that there are no provisions in the legislation conferring a dispensing power enabling a prosecution to be commenced or continued without the prosecution notice being lodged.

20 Counsel for the applicant in CIV 1652 of 2012 (whose submissions were accepted by counsel for the applicant in CIV 1653 of 2012) submitted that the use of the word 'must' in this context is not merely directory but 'is a word of absolute obligation': Posner v Collector for InterState Destitute Persons (Vic) [1946] HCA 50; (1946) 74 CLR 461, 491 and Chun Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 71 FCR 386, 391; [1997] FCA 70; (1997) 151 ALR 717 (Merkel J). In the latter case Merkel J referred to D C Pearce & R S Geddes, 'Statutory Interpretation In Australia' (4th ed, 1996) page 278 and Public Prosecutor v Oie Hee Koi [1968] AC 829, 852 which contain references to the principle that enactments requiring that a specified procedure be followed in courts are usually mandatory and not directory (see now Pearce & Geddes' 7th edition at [11.25] page 363).

21 Counsel for Westpork Pty Ltd readily acknowledged that the conclusion of Merkel J in Wang v Minister for Immigration and Multicultural Affairs was disavowed in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 [91] [92]; [1998] HCA 28; (1998) 194 CLR 355. The rejection of the directory/mandatory dichotomy as a sufficient test for invalidity resulting from noncompliance with a statutory provision was made clear in Project Blue Sky by Brennan CJ at [38] where the learned Chief Justice said:

A third kind of provision must be distinguished from provisions which restrict the ambit of the power and provisions which are prescribed conditions on its availability for exercise. A provision may require the repository or some other person to do or to refrain from doing something (sometimes within a period prescribed by the statute) before the power is exercised but noncompliance with the provision does not invalidate a purported exercise of the power; the provision does not condition the existence of the power. Such a provision has often been called directory, in contradistinction to mandatory, because it simply directs the doing of a particular act (sometimes within a prescribed period) without invalidating an exercise of power when the act is not done or not done within the prescribed period. The description of provisions as either mandatory or directory provides no test by which the consequences of noncompliance can be determined; rather, the consequences must be determined before a provision can be described as either mandatory or directory. (footnotes omitted)

22 To similar effect see McHugh, Gummow, Kirby and Hayne JJ at [93] where, after reference to other criticisms of the elusive distinction between directory and mandatory requirements in a statute, their Honours said:

They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of a legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the enquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. (footnotes omitted)

23 Nevertheless, counsel for the applicants maintain that failure to comply with statutory requirements (absent a dispensing power) invalidates proceedings, citing Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223, 227; (1991) 72 LGRA 414, 227 (a prosecution without prior consent) and About Holdings Pty Ltd v Bellbird Enterprises Pty Ltd (1996) 17 WAR 309, 313 (mode of commencing certain civil proceedings). Counsel also cited Mansell v Acting Magistrate Luxton (No 2) [2010] FMCA 409 [72].

24 Palos Verdes Estates Pty Ltd v Carbon concerned a prosecution which under s 114 of the Environmental Protection Act 1986 (WA) which required the consent of the responsible Minister. Attempts made by the prosecution to prove the grant of consent by that Minister, when it was put in issue by the defendant, were unsuccessful and the ensuing conviction was quashed on appeal to the Full Court on the basis that the Minister's consent was essential to the validity of the proceedings. This case is, therefore, distinguishable from the present because here there is no suggestion of noncompliance with any antecedent condition for the valid commencement of the prosecution; rather, the present question is whether or not a prosecution regularly commenced enlivened the jurisdiction of the Magistrates Court when a copy, rather than the original, of the prosecution notice, was filed in the court registry. In About Holdings Pty Ltd v Bellbird Enterprises Pty Ltd Parker J held that the institution of an originating summons in this court had been done in contravention of a statutory bar contained in s 27(1) of the Commercial Tenancy (Retail Shops) Agreement Act 1985 which prohibited the institution or commencement of proceedings in a court when the instituting party had previously instituted proceedings by way of a reference to the Registrar of the Commercial Tribunal because such a previous institution was an election between two available remedies which, once made, rendered the other unavailable. At 313 his Honour reviewed a series of English decisions (all of which predated Project Blue Sky), which discussed how certain proceedings commenced in contravention of various statutory provisions were, or in certain circumstances could be regarded as, a nullity. Whether that approach to the validity of proceedings commenced in this court is still available in the light of the decision in Project Blue Sky is a matter which need not be closely examined; the result in that case may well have been the same if the objecting party had applied for a permanent stay of the originating summons on the grounds that it had been commenced in contravention of another statutory prohibition, a procedure which would almost certainly have led to the same result without the need to agitate the notoriously difficult and variable concepts associated with the term 'nullity'. Again About Holdings Pty Ltd v Bellbird Enterprises Pty Ltd is plainly distinguishable from the present situation.

25 Mansell v Acting Magistrate Luxton (No 2) concerned the validity of a warrant for the extradition of an alleged offender from Queensland to Western Australia. It was submitted that the magistrate issuing the warrant had made several errors of law, including a finding that omissions on the face of the warrant did not vitiate it and that a failure to attach the prosecution notice to the warrant (contrary to the Criminal Procedure Act 2004 (WA)) did not vitiate the warrant. The application was brought before the Federal Magistrates Court under the Administrative Decisions (Judicial Review) Act 1997 and the result was that the learned magistrate considered that the warrant should not have been issued and it was returned to the issuing magistrate for reconsideration according to law. In reaching that decision Coker FM said at [72]:

The mandatory nature of the Criminal Procedure Act 2004 (WA), in respect of form and substance and the basis, upon which a magistrate, properly exercising his discretion, could issue a warrant, cannot and should not be ignored. Failure to sign the prosecution notice, failure to attach the prosecution notice to the warrant, or to swear the affidavit which provides the evidentiary base upon which the warrant issues, means that the warrant should not ever have issued and, having issued incorrectly, is invalid.

26 Again the language used to reach that conclusion begins with the attribution to the relevant requirements of the Criminal Procedure Act as being of 'mandatory nature' noncompliance with which leads to invalidity. Whether a similar result would have followed by an analysis embodying the alternative approaches preferred in Project Blue Sky seems probable but relief under s 16 of the ADJR Act would have been available and the decision could have been quashed, even if it had not been regarded as invalid. Again, it is not necessary or desirable in this case to enter upon the correctness or otherwise of the approach adopted in Mansell v Acting Magistrate Luxton (No 2) because, in that case, the lack of compliance with the statute was gross and in respect of matters which conditioned the effectiveness of any warrant for execution issued under the CPA. Once again the decision is distinguishable from the situation under present examination.

27 The most recent edition of Pearce & Geddes 'Statutory Interpretation In Australia' (7th ed) at [11.25] page 363 364 makes reference to many examples where the courts have retreated from the former view that noncompliance with enactments laying down the procedure to be followed in commencing or prosecuting an action in court results in invalidity. Examples of the more modified procedure followed in modern cases are given by Ex parte Tasker; Re Hannan [1971] 1 NSWLR 84, 809 (Herron CJ); Accident Compensation Commission v Murphy [1988] VicRp 52; [1988] VR 444; and Hatton v Beaumont (1978) 20 ALR 314. In the latter case Jacobs J at 591 observed:

To say that procedural requirements are usually or prima facie mandatory in character cannot gainsay the primary necessity of examining the framework of language of the statute or regulation.

28 More recently still in Woods v Bate (1986) 7 NSWLR 560, 567 McHugh JA (with whom Hope JA agreed) observed at 567:

In recent times the courts have shown great reluctance to invalidate an act done pursuant to a statutory provision because of the failure to comply with an antecedent condition. See Simpson v Attorney-General [1955] NZLR 271; Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214; Samuel Montague & Co Ltd v Swiss Air Transport Co Ltd [1966] 2 QB 306; Ex parte Tasker; Re Hannon [1971] 1 NSWLR 804; Attorney-General (NSW) (Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd) [1977] 2 NSWLR 955 reversed on other grounds sub nom Permewan Stores Pty Ltd (1977) 52 ALJR 218; Tasker v Fullwood [1978] 1 NSWLR 20; Hatton v Beaumont (1978) 52 ALJR 589. Speaking generally, I think that, at the present time, the proper approach is to regard a statutory requirement, expressed in positive language, as directory unless the purpose of the provision can only be achieved by invalidating the result of any departure from it, irrespective of the circumstances or resulting injustice: cf Hatton v Beaumont [1977] 2 NSWLR 211 at 225 per Mahoney JA.

But even if enactments regulating the procedures of courts are an exception to the general rule that statutory requirements expressed in positive language are directory, recent cases show that the failure to serve a notice of appeal does not ordinarily invalidate the appeal. In Whitehouse Hotels Pty Ltd v Lido Savoy Pty Ltd [1974] HCA 38; (1974) 131 CLR 333 the High Court held that the failure to serve a copy of a notice of appeal within the prescribed time did not invalidate an appeal lodged in accordance with the High Court Rules. A similar result was reached in this Court in Neilsen v Water Resources Commission (1985) 11 IR 102 where the notice of appeal was served nineteen days out of time.

30 Accordingly, I do not consider that any question about the validity of these present prosecutions can necessarily be determined by reference to whether the requirements of s 24(2) of the Criminal Procedure Act are mandatory or directory. The better approach is to consider whether, in all the circumstances, noncompliance with the asserted obligation to file the original prosecution notice in the registry of the court should be regarded as depriving the court of jurisdiction or rendering the substituted initiating process invalid or ineffective. That task requires a broader consideration of the requirements of the legislation.

31 In that regard, counsel for the applicants both advanced the proposition that the CPA, as a whole, draws a clear distinction between a prosecution notice and 'a copy of the prosecution notice' by s 27, s 31, s 32, s 33 and s 59(2) so that where a copy of the prosecution notice will be sufficient for the purpose of the statute express provision is made for that, leading to the implication that unless this is done use of the original prosecution notice is obligatory. However, even if that distinction is accepted, the question still remains whether, in cases where the statute intends use to be made of an original prosecution notice, failure to do so will result invalidity or ineffectiveness. I consider that that question can only be answered by an application of the test for validity as expounded in Project Blue Sky and the other authorities referred to by McHugh J in Woods v Bate.

32 Counsel for the respondent has made reference to a series of provisions in the Criminal Procedure Act in support of the submission that the use of photocopy prosecution notices in the present case did not render the prosecutions invalid nor deprive the Magistrates Court of jurisdiction. Counsel for the respondent stressed the findings of the learned magistrate that all of the charges against each applicant had been commenced within the statutory time limit; that the provisions of the Magistrates Court Act had been complied with in relation to the content of those original prosecution notices, and that true copies of the original prosecution notices had been filed in the Magistrates Court. Counsel for the respondent submitted that the various references to prosecution notices contained in the following provisions of the Criminal Procedure Act are to be found in reference to powers conferred by the Act upon a court in relation to simple offences and are directed to the hearing and determination of charges. They include provisions to the effect that:

(a) the court must be satisfied of certain matters under s 59(2) of the CPA before it requires the accused to plead to the charge;

(b) s 68 of the CPA requires that the determination by the court in relation to a charge be recorded on the prosecution notice;

(c) the court may adjourn a charge under s 75(3)(a) to allow the accused to consider the prosecution notice; and

(d) the court may amend a prosecution notice under s 132 to deal with difficulties with the charge or charges included in the notice.

33 In the submission of counsel for the respondent, a prosecution notice is a means to the end of bringing charges before the Magistrates Court for hearing and determination. According to this submission, this is demonstrated by div 2 of pt 3 in sch 1 which deals with how prosecutions are to be commenced; and the formal requirements applicable to prosecution notices and how they are to be lodged with the court. Further, div 3 of pt 3 in sch 2 deals with how an accused is to be notified of the prosecution against the accused and s 173 creates offences in relation to unauthorised signing or lodgement of a prosecution notice.

34 In the submission of the respondent, the only possible impediment to accepting the effectiveness of a copy prosecution notice filed in the registry is rule 45 of the Magistrates Court (General) Rules 2005 requiring 'a prosecution notice must be lodged by handing the original notice to the court'. The question which therefore arises is whether or not a failure to hand the original to the court results in invalidity or lack of jurisdiction in a case where an authentic copy of the prosecution notice is filed in circumstances where the original has inexplicably been lost or destroyed. That question has to be answered in the light of the purposes to be advanced or performed by an insistence in the rules on the filling of an original and a consideration of legislative intention in circumstances where, for any reason, that is rendered impossible.

35 It must be regarded as having been within the contemplation of the legislature or the drafters of the CPA and the Magistrates Rules that, in exceptional circumstances, an original prosecution notice might be lost or destroyed. A prosecution notice duly and properly prepared might be destroyed, for example, by fire in an office of the prosecutor or in transit to the court or be stolen or misplaced. Can it be imagined that it would have been within the intention of Parliament that in such an eventuality there could never be a valid prosecution by production of an authentic copy? I hardly think so. The suggestion in the present case that the practice of Magistrates Courts when prosecution notices do go missing for unexplained reasons is to require the production or issue of a new prosecution notice cannot answer this question because, as already explained, the issue of a new notice is not possible in the present case because of the limitation period. So the question remains whether the production of an authentic copy of the notice is insufficient to attract the jurisdiction of the Magistrates Court or renders the prosecution invalid.

36 No legislative or public purpose favouring such a conclusion has been suggested or is apparent. Rather, the public interest points in the contrary direction, suggesting that, in such an unfortunate exigency, production of an authentic copy of the prosecution notice which can be proved to have been regularly executed within time, will suffice. I consider that I should adopt an interpretation of the statutory provisions which would advance, rather than frustrate, the purpose or objects underlying the Criminal Procedure Act, namely that persons who are alleged to have committed any breach of the law should be given due notice of the charge or charges against them in specific form and be required to answer that charge or those charges in a designated court of competent jurisdiction in a specified manner. That object can be promoted and accomplished by recognising, in a case such as the present, that the lodging of an authentic copy of the notice of prosecution will suffice notwithstanding the mandatory requirements for the lodging of an original notice required by rule 45. That approach is also in accordance with s 18 of the Interpretation Act 1984 (WA).

37 Accordingly, I consider that learned magistrate was correct in rejecting the applications by the applicants for a permanent stay of the prosecutions in that court based on alleged invalidity of the prosecution notices or consequent lack of jurisdiction over those charges by the Magistrates Court. It follows that I do not consider that any ground has been demonstrated to warrant a review of the learned magistrate's decision to dismiss those applications for a stay of proceedings. It follows that the present orders to review must also be discharged.

38 As a consequence of this decision it also follows that the orders staying the prosecutions in the Magistrates Court made by McKechnie J when granting the orders to review on 6 July 2012 should now be discharged.